Lakhbir Singh vs State of Punjab

M. Jeyapaul, J.—The first accused Roshan Lal and the second accused Lakhbir Singh were convicted for offence u/s 302 of the Indian

Penal Code, but unfortunately they were sentenced to undergo only 10 years rigorous imprisonment each, which is quite against the spirit of the

penal provision u/s 302 of the Indian Penal Code.

Lakhbir Singh has preferred Criminal Appeal No. 842-SB of 2000 and Roshan Lal has preferred Criminal Appeal No. 857-SB of 2000.

Aggrieved by the quantum of sentence imposed on them, the State on its part has also preferred Criminal Appeal No. 929-SB of 2000.

The case of the prosecution is that these two accused committed murder of the victim Harpreet Singh by strangulating his neck with a piece of

cloth and took away the grocery and a silver ring possessed by the deceased.

Though there is no eye witness to the occurrence, the trial Court relying upon the chain of circumstances involving the accused to the

commission of murder and the last seen theory established by the prosecution, returned a finding that the accused-Appellants herein committed the

murder of Harpreet Singh.

5.I have heard the submissions made by the learned Counsel appearing for the Appellants as well as the Deputy Advocate General appearing for

the State.

Though a challenge has been made in both the appeals preferred by the accused as to the conviction recorded against these accused u/s 302 of

the Indian Penal Code, they have chosen to restrict their submissions only with respect to the age of the accused and the punishment awarded to

them. The learned Counsel appearing for the accused Appellants taking inspiration from the punishment slip provided by the prosecuting agency,

just before the verdict was passed by the trial Court, would submit that the age of both the accused had been given as 17 years therein. Referring

to the decision of the Hon We Supreme Court in Hari Ram v. State of Rajasthan and Anr. 2009 (2) R.C.R.(Cri) 878: 2009 (3) RA.J. 414: 2009

(3) GLJ 723, the learned Counsel for the accused-Appellants would submit that the age of the accused will have to be determined in the spirit of

the Juvenile Justice Act, 1986. Despite of the fact that they had attained the age of 17 years, in as much as retrospective effect u/s 7-A of the

Juvenile Justice (Care and Protection of Children) Act, 2000 has been given. Therefore it is their submissions that the accused-Appellants cannot

be sent jail to undergo the life imprisonment for an offence u/s 302 of the Indian Penal Code as they were juveniles below the age of 18 years at

the time when the offence was committed.

In contrast, the learned Deputy Advocate General, appearing for the State would submit that the trial Court had not given any reason for arriving

at a conclusion that the age of the juvenile was 17 years. At any rate having convicted the accused-Appellants u/s 302 of the Indian Penal Code,

the trial Court should have awarded life imprisonment or death penalty as contemplated thereunder. The trial Court has no authority to reduce the

sentence from life imprisonment on the flimsy ground that the accused were found to be youthful offenders. Therefore, it is his submission that the

trial Court has committed a patent error in law while awarding sentence on the accused-Appellants for offence u/s 302 of the Indian Penal Code.

Though the trial Court had not entered into any discussion with respect to the age of the accused-Appellants, the trial Court came to a decision

that the accused had completed 17 years of age. At this juncture the teamed Counsel appearing for the Appellants drew the attention of this Court

to the punishment slip submitted by the prosecuting agency before the trial Court wherein the age of both the accused was referred as 17 years.

The trial Court might have been guided by the age of the accused referred to in the punishment slip. But at any rate the trial Court should have at

least referred to the source of the conclusion to arrive at the age of the accused as 17 years. Further it is found even as per the case of the

prosecution as projected in the punishment slip, the age of both the accused was 17 years.

As regards the conviction recorded by the trial Court against the accused u/s 302 of the Indian Penal Code, this Court cannot find any fault in

the same. The reason being that at the time when the offence was committed by the accused, the Juvenile Justice Act, 1986 was in operation

where under the juvenile was one, who has not completed 16 years if he was a male and 18 years if she was a female. The present Juvenile Justice

(Care and Protection of Children) Act, 2000 came into force only as on 1st April 2001. The retrospective effect to the provision of the Juvenile

Justice (Cafe and Protection of Children) Act, 2000, was given under the new Section 7-A introduced thereunder by the Act 33 of 2006 with

effect from 22.08.2006.

Now it has been authoritatively held by Hon''ble Supreme Court taking into consideration Section 7(A). which was introduced in Juvenile

Justice (Care and Protection of Children) Act, 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that the age

of the juvenile shall be determined in accordance with the provisions of the present Juvenile Justice (Care and Protection of Children) Act 2000

and the rules framed thereunder in the year 2007. In other words the accused who had not completed the age of 18 years at the time when he

committed the offence, shall be treated as a juvenile irrespective of the fact that the offence was committed when the Juvenile Justice Act, 1986

was in operation and that the accused had crossed his 16 years but not completed his 18 years.

The investigating agency while filing the final report has fixed the age of the first accused Roshan Lal at 18 years and the second accused at 16-

1/2 years but the very investigating agency has come out with the age of both the accused 17 years in the punishment slip furnished later on to the

trial Court. It is a well settled principle of law that if two views are possible based on the material produced by the investigating agency with

respect to the age of the accused, the Court should be lenient in sustaining one of the views that the accused was a juvenile

Though both the accused had crossed 16 year at the time when they committed the offence and the Juvenile Justice Act, 1986 was also in

force at that point of time determining the age of the accused as per Rule 12of the Present Juvenile Justice (Care and Protection of Children) Rules,

2007 and Section 7-A of the Juvenile Justice Act, 2000, it is held that both the accused, who had just completed 17 years as per own showing of

the prosecution, are entitled to the benefit of the juvenile offender under the new Act

The trial Court has rightly convicted both the accused u/s 302 of the Indian Penal Code as they had completed 16 years of age, as Section 7-

A of the Juvenile Justice (Care and Protection of Children) Act 2000 was not introduced by them to the effect that a juvenile, who had not

completed 18 years on the date of commission of offence, is also entitled to the benefit of the Juvenile Justice (Care and Protection of Children)

Act, 2000 as if the provisions of Section 2(k) under the said Act had been in existence even during the operation of the Juvenile Justice Act, 1986.

The Juvenile Justice Board is the competent authority to conduct the enquiry and pass appropriate orders on the juvenile who has committed

an of fence and the Board can at the maximum make an order directing the juvenile to be sent to a juvenile Special Home for a period of three

years, on finding that the juvenile has committed an offence. Ajuvenile cannot be convicted and sentenced for the offence he has committed.

In the instant case, both the accused-Appellants, who were convicted and sentenced by the trial Court, had already completed the sentence

and were released from the Jail. Therefore, the question of referring the matter to the Juvenile Justice Board for making an enquiry and to pass an

order under the juvenile Justice (Care and Protection of Children) Act, 2000, does not survive for consideration.

In view of the above holding that the accused Appellants had committed the offence of murder when they were juveniles and treating the

period of sentence undergone by them in the Jail as a period they have spent in the special home, the conviction recorded by the trial Court stands

set aside. Both the appeals, filed by the accused-Appellants are dis-posed of accordingly and the appeal filed by the State is dismissed.